EX-PARTE PROCEEDING

Citation Name : 2018 PTD 1042 LAHORE-HIGH-COURT-LAHORE
Side Appellant : IMRAN ALI LUBRICANTS through Managing Partner
Side Opponent : FEDERATION OF PAKISTAN through Secretary Revenue Division, Islamabad
R. 12---Sales Tax Act (VII of 1990), S. 21(2)---Constitution of Pakistan, Arts. 10-A & 18---Vires of R.12, Sales Tax Rules, 2006---Blacklisting and suspension of registration of a registered person---Power of Commissioner to suspend registration without prior notice [Rule 12 of the Sales Tax Rules, 2006]---Constitutionality---Commissioner could exercise such power under R. 12 if he was satisfied that a registered person had issued fake invoices, evaded tax or committed tax fraud---Commissioner was obliged to make some sort of inquiry before forming an opinion to suspend registration, and he would have to have material evidence before him in order to be satisfied to proceed to suspend registration---Engaging the registered person during such inquiry would, therefore, be inevitable in most cases---Although the Commissioner was under a duty to issue a show-cause notice within seven days of the issuance of suspension, but the proceedings may continue for a period of ninety days during which suspension order shall remain in force---Question was what if at the end of ninety days either the proceedings were not concluded and suspension order became void ab initio, or, the proceedings ended in favour of the registered person---In both said cases, the registered person shall have by then suffered irreparable loss and injury which could not be compensated and for which the registered person did not seem to have a remedy---Although a registered person had ostensibly been afforded due process of law, yet the initial order of suspension of his registration without notice would render illusory the due process which was subsequently sought to be afforded to the registered person---Section 21(2) of the Sales Tax Act, 1990 provided that the Commissioner may have the ultimate power to either suspend a registration or blacklist a person but it could not be culled out from said section that an unbridled and unfettered power could be conferred on the Commissioner concerned to suspend a registration for a period of ninety days without notice and without affording an opportunity of hearing---Rule 12 of the Sales Tax Rules, 2006 spelled out that 'satisfaction' of the Commissioner was relevant for suspension of registration, but it was contradictory to say that a Commissioner was satisfied that a person had issued fake invoices, evaded tax or committed fraud, yet a further inquiry was required to confirm the offence---Term 'satisfaction' connoted that there was enough material to form a definite opinion--- Commissioner could only be satisfied if he had conducted a deep and invasive inquiry praying into the records of a person---Words "is satisfied that a registered person has issued fake invoices..." did not leave anything to imagination that a conclusive opinion had been formed to suspend registration and the subsequent show-cause notice was a mere eye-wash---Rule 12 was irrational and unreasonable on the basis of another ground that once a suspension order had been passed ex-partE ,the Commissioner concerned was not required to review that order till the proceedings of blacklisting were concluded nor had a registered person been conferred a right to have that order reviewed pending those proceedings- --Even before the stage of blacklisting arrived, the satisfaction of the Commissioner while considering suspension, related to seriously egregious allegations such as fake invoices, evasion of tax and commission of fraud---All said charges were of a criminal nature and thus the registered person was entitled to the protection of Art.10-A of the Constitution and to a fair trial and due process---Indubitably therefore, he was also entitled to a right of hearing at both stages of determination---Furthermore conferring of power on the Commissioner under R.12 was a clear impairment of the right under Art.18 of the Constitution as clearly, the registered person against whom a suspension order had been passed was barred from conducting all kind of business for a period of ninety days at least---Power of suspension of registration without prior notice was, thus, unlawful and impinged upon the rights of the registered persons to be treated in accordance with law and to be afforded due process of law---Rule 12 of the Sales Tax Rules, 2006 to the extent that it provided for suspension of registration of a registered person without prior notice was held to be ultra vires the Constitution as well as the main enactment and was struck down---High Court directed that the Commissioner concerned could only proceed to suspend the registration of a registered person with prior notice and upon affording an opportunity of hearing---Constitutional petitions were allowed accordingly.


Citation Name : 2018 CLC 994 LAHORE-HIGH-COURT-LAHORE
Side Appellant : EXPEDITOR INTERNATIONAL PAKISTAN (PVT.) LTD.
Side Opponent : SITARA TEXTILE INDUSTRIES LTD.
O. IX, R. 13 & O. VII, R. 2---Limitation Act (IX of 1908), Art. 164---Money suit---Application for setting aside decree---Limitation--- Condonation of delay--- "Sufficient cause"--- Scope---Defendant after filing written statement did not appear and suit was ex-partE decreed---Contention of defendant was that his counsel did not inform him with regard to ex-partE proceedings and decree---Petition for setting aside of ex-partE decree was dismissed being time barred---Validity---Application for condonation of delay was to be considered with due care and caution---Petition for setting aside of ex-partE decree was moved after two years from passing the said decree and four years from ex-partE proceedings- --Valuable right had accrued in favour of respondent-plaintiff as role of limitation could not be ignored---Petitioner-defendant should have applied to set aside the ex-partE decree within thirty days from the date of passing of ex-partE order or at the most from ex parte decree---Petitioner-defendant after joining the proceedings absented himself for a long period of more than four years---Petitioner-defendant was bound by the Court proceedings and he should have pursued the lis lodged against him---Applicant-defendant did not contact the counsel so as to know the stage and progress of the case---Petitioner-defendant was required to explain each and every day of his absence beyond thirty days in a justifiable manner---Defendant was not entitled to count limitation from the date "when he acquired knowledge" of ex-partE decree---Revision was dismissed in circumstances.


Citation Name : 2018 PLD 163 KARACHI-HIGH-COURT-SINDH
Side Appellant : ABDUL QADIR MEMON
Side Opponent : SHAHID UMAR
O. XXXVII, Rr.1 & 2, Appendix-B, Form No.4---Suit for recovery of money---Summary proceedings- --Issuance of notice or summons---Scope---Defendant was aggrieved of ex-partE order passed against him by Trial Court under O.XXXVII, C.P.C.---Plea raised by defendant was that process in shape of notice issued by Trial Court was not proper service as directed by C.P.C.---Validity---Upon institution of suit, Court was duty bound to issue summons to defendant calling upon him to answer, on the date specified in the summons, the claim made by plaintiff in his suit---Notice could be issued to defendant at any subsequent stage of suit and for the purpose specified therein or in respect of applications filed by plaintiff or other defendants in a pending suit but not upon institution of suit to answer claim of plaintiff---Summons in prescribed Form No.4 of Appendix-B to O.XXXVII, R.2(1),C.P.C. was not issued at all---No publication in newspaper was made in respect of the suit---Entire proceedings and ex-partE order passed against defendant were illegal and liable to be set aside---High Court set aside order in question---Revision was allowed in circumstances.


Citation Name : 2018 MLD 962 KARACHI-HIGH-COURT-SINDH
Side Appellant : LUCKNOW COOPERATIVE HOUSING SOCIETY LIMITED
Side Opponent : IV-SENIOR CIVIL JUDGE, KARACHI (SOUTH)
Art. 199---Civil Procedure Code (V of 1908), Ss. 12(2) & 151 & O. IX, R. 9---Constitutional petition against judicial proceedings- --Scope---Allotment of land---ex-partE decree, setting aside of---Suit filed against the petitioner-judgment debtor was decreed ex-partE and application for setting aside the said decree was dismissed---Petitioner assailed said orders in constitutional jurisdiction of High Court---Validity---Impugned judgment and decree passed in the civil suit was firstly challenged on the basis of fraud and misrepresentation through an application under S.12(2), C.P.C. but same was dismissed---Execution petition against the petitioner-judgment debtor had been allowed by the Executing Court---Petitioner moved another application under O. IX, R. 9, C.P.C. which was also dismissed---Petitioner had earlier filed constitutional petition against the order of Executing Court which was disposed of with the consent of both the parties---Present constitutional petition had been filed with same prayer which was mala fide of the petitioner---Constitutional jurisdiction could only be exercised in aid of justice and not for the purpose of promoting/ advancing injustice---One could not approbate and reprobate under the law---Constitutional petition was dismissed in limine.


Citation Name : 2017 YLRN 212 LAHORE-HIGH-COURT-LAHORE
Side Appellant : ALI KHAN
Side Opponent : MUHAMMAD KHAN
Ss. 164 & 135---Revisional powers of Board of Revenue---Scope---Partition proceedings- --Petitioners contended that though respondents were owners of 25% of joint property but Revenue Officer unfairly gave respondents 93% of valuable front facing towards metalled road in ex-partE proceedings on application for partition of respondents decades back---Petitioners further agitated that revenue hierarchy moved in mechanical way by successively maintaining the basic order of Revenue Officer and no Authority set aside ex-partE order against the petitioners---Respondents contended that as there was no one there to oppose before the Revenue Officer so he was right to pass the said order---Validity---Even after initiating ex parte proceedings, the court being custodian of rights of litigants was required to dispense with justice while keeping in mind their entitlement, but Revenue Officer omitted to act fairly and justly---Other higher forums also acted arbitrarily while tackling the issue in mechanical manner---Tribunal/authority delegated with the powers to decide the personal rights of the parties or the rights attached to their properties were required to decide the same judiciously on its merit under the mandate of law---Record revealed that merits of the case were not dealt with by any of the authorities, rather the petitioners were mainly non-suited on the ground that the partition proceedings had already been implemented in the record of rights through attestation of mutation, but none of them paid attention to observe as to how the respondents being owners of lesser part of the common holding were given almost entire frontal part thereof and why the petitioners being major partners were forced to get their wanda in the hindmost part of the holding, who were bound to consider the category, value, location, and potential of the property while partitioning it, which was the most important factor to be followed while conducting said proceedings- --Section 164 of the Punjab Land Revenue Act, 1967 gave unfettered powers to Board of Revenue, Commissioner and Collector to call for the record of any case pending before or even disposed of by any subordinate revenue officer and in such a case, if record thereof had been called for, Board of Revenue as well as Commissioner could pass such order as they deemed fit---Revisional jurisdiction conferred upon the Board of Revenue was not subject to restrictions rather the same was very vast and main object was to curtail miscarriage of justice and the apex revenue hierarchy could interfere with the orders of subordinate authorities even if implemented or acted upon by any of parties---High Court observed that Member Board of Revenue, in the present case, without commenting upon the merits of the case or without considering legality and propriety of the orders assailed before it erred in law while upholding the same in mechanical manner, which practice neither could be protected nor perpetuated--Orders passed by revenue hierarchy lacked lawful authority which was set aside and High Court directed that application for partition would be deemed to be pending before the Revenue Officer concerned, who would re-decide the same fairly and justly after considering the principles of partition---Constitutional petition was accepted.


Citation Name : 2017 YLR 538 ISLAMABAD
Side Appellant : DEFENCE HOUSING AUTHORITY, ISLAMABAD
Side Opponent : SHAFQAT RASOOL
O. IX, R. 13---Land Acquisition Act (I of 1894), S. 18---Reference to court---ex-partE proceedings, setting aside of---Void order---Scope---Appellants moved application for setting aside of ex-partE proceedings which was dismissed---Contention of appellants was that case after remand was fixed before the court having no jurisdiction---Validity---Administrative error did not absolve the appellants from the obligation of attending the court and pointing out the said error to the Presiding Officer---When an order was passed by a court, tribunal or any other authority which had no jurisdiction either about subject matter, pecuniary value or territorial limits then same would be treated as void order---Court before whom case was fixed after remand did not have the territorial jurisdiction over the matter---Impugned order was without jurisdiction and void which was set aside---Appellants had been negligent in defending the reference petition in post remand proceedings- --Appeal was allowed and appellants were directed to pay the cost of Rs. 50,000/- to the respondents---Trial Court was directed to decide the reference petition within specified period of time.


Citation Name : 2017 YLR 2191 Gilgit-Baltistan Chief Court
Side Appellant : ALI HAIDER
Side Opponent : MURTAZA KHAN
O. IX, R. 13 & O. XVII, R. 5---Limitation Act (IX of 1908), S. 5 & Art. 164---ex-partE decree, setting aside of---Limitation---Condonation of delay---Order by ministerial officer of the court---Effect---Suit was fixed for evidence of defendants but they absented themselves and ex parte decree was passed---Application for setting aside ex-partE decree was dismissed being time barred---Validity---Ministerial officer of the court, when Presiding Officer was on leave, could only handover duly signed slips of papers to the parties specifying other date fixed for proceedings- --Ministerial officer could not pass order resulting in penal consequences---Court on the adjourned date would be competent to conduct the same proceedings as scheduled on the day when Presiding Officer was absent or in his dissension case was adjourned---Defendants and their witnesses remained absent on the date which was fixed by the ministerial officer of the court---Presiding Officer did not take the case directly to the penalizing side rather ex-partE proceedings were initiated and case was adjourned for arguments---Case was adjourned for two times from the date fixed by the ministerial officer but defendants did not appear leaving no room except to pass ex-partE decree---No illegal order was passed against the defendants---Defendants had absented from the proceedings and Art. 164 of Limitation Act, 1908 was attracted which had provided 30 days period to file application for setting aside ex-partE decree---Order resulting penal consequences could be set aside if such order was passed when case was not fixed for hearing and application for setting aside the said order was moved within time---Application for setting aside ex-partE decree had been moved after lapse of limitation---Period of limitation could be condoned provided the party succeeded to establish that each day of delay was due to some unavoidable reasons---Each and every day of delay must be proved by the party to take benefit of S. 5 of Limitation Act, 1908---No details in that regard had been furnished in the said application and supporting documents---Revision was dismissed in circumstances.


Citation Name : 2016 YLR 2851 SUPREME-COURT-AZAD-KASHMIR
Side Appellant : SALEEM AKBAR KAYANI
Side Opponent : Dr. REHANA MANSHA KAYANI
Ss. 5, Sched & 14---Azad Jammu and Kashmir Family Courts (Procedure) Rules, 1998, R. 22---Suit for recovery of maintenance allowance---ex-partE proceedings- --Amendment in plaint without notice to the defendant---Effect---Appeal---Limitation---Condonation of delay---Defendant was proceeded against ex-partE and evidence was recorded---Application for amendment in the plaint was moved which was accepted---Contention of defendant was that Family Court was bound to issue notice to him while allowing amendment in the plaint---Appeal filed by the defendant was dismissed being time barred---Validity---Cause shown by the defendant for filing appeal beyond the period of limitation had sufficiently been explained---Defendant was entitled for condonation of delay---Appeal was filed in Shariat Court after condonation of delay---Right of hearing was a constitutionally guaranteed fundamental right of every citizen---No order or decree could be passed against a person without providing an opportunity of hearing to him---Family Court was bound to serve notice upon the defendant after allowing application for amendment in plaint---Defendant should have been provided opportunity to file written statement---Decree for maintenance claimed in the amended plaint could not be passed without issuance of notice to the defendant and seeking his written statement---Impugned judgment and decree passed by the Family Court were not sustainable which were set aside---Case was remanded to the Family Court for decision afresh after seeking written statement from the defendant and recording evidence in accordance with law---Family Court was directed to decide the matter within a period of two months from the receipt of record---Appeal was allowed in circumstances.


Citation Name : 2016 CLC 1922 KARACHI-HIGH-COURT-SINDH
Side Appellant : PAKISTAN HOCKEY FEDERATION
Side Opponent : Mirza IMTIAZ BAIG
O. VI, Rr.14 & 15---Pleadings, non-signing of---Ex parte proceedings- --Defendants failed to sign written statement and verification thereunder, therefore, Single Judge of High Court directed to proceed ex-partE against defendants---Plea raised by defendants was that it was merely an irregularity which was curable---Validity---Omission to or mistake to sign pleadings (plaint or written statement) was merely an irregularity and could be cured/rectified subsequently at any stage---Division Bench of High Court directed defendants to sign and verify written statement already on record and set aside the order passed by Single Judge---Intra-court appeal was allowed in circumstances.


Citation Name : 2015 YLR 957 PESHAWAR-HIGH-COURT
Side Appellant : Chaudri SHAKEEL AHMAD
Side Opponent : GHULAM FARID
O. IX, R. 13---ex-partE decree, setting aside of---Contention of petitioners-defendants was that they were not served personally after remand of case from the High Court---Application for setting aside ex parte decree was dismissed concurrently---Validity---High Court in the present case, remanded the case in earlier round of litigation to the Trial Court and petitioners-defendants were required to get information about the proceedings- --Petitioners-defendants were proceeded against ex parte after eight months but they did not inquire about the proceedings- -Application for setting aside ex parte decree was moved after two years which was without any reason---Petitioners-defendants had to be vigilant and inquire about the date or proceedings as they were present before the High Court when matter was remanded to the Trial Court---Conduct of defendants-petitioners was not above board---Delay of each and every day had to be explained---Revision was dismissed in circumstances.

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